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State v. Lane9/27/1999
AFFIRMED
We granted review in this case in order to resolve two sentencing issues. In the first, the defendant, David Keith Lane, contends that the trial court should have used the criteria set forth in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), (rather than the provisions of Tenn. Code Ann. § 40-35-115(b)(5)(1997)) to determine whether to impose consecutive sentences. In the second, the defendant asserts that he should have been granted alternative sentencing, contending that the trial court's denial of alternative sentencing was based, at least in part, upon a consideration of a conviction since dismissed and expunged from his record. Because we find that the trial court properly applied the laws and principles governing sentencing in both issues, we affirm the judgment of the Court of Criminal Appeals.
I.
The complainant, E. S., a sixteen-year-old female, was placed in the custody of the Tennessee Department of Human Services (DHS) in January 1992. Lane was employed by DHS, and his duties included the counseling of foster-care children in Cleveland. In January 1993, he was assigned as E. S.'s counselor, and he assisted in her foster-care placement with her aunt and uncle.
In August 1994, the foster-care placement was terminated after E. S.'s uncle discovered marijuana under her bed. As her counselor, Lane's duties included transferring E. S. to a Knoxville shelter. Before reaching the shelter, Lane engaged in sexual intercourse with E. S. in the car. He told her not to tell anyone what they had done and that if she did "people would just think that she was a whore."
This was the first act of a continuing course of unlawful activity between Lane and E. S. The next encounter occurred after E. S. had run away from a Sevierville facility to which she had been transferred. At that time, she contacted Lane, who picked her up and drove her to his friend's home in Chattanooga. En route, Lane encouraged E. S. to smoke marijuana with him. After arriving at the friend's home, Lane smoked more marijuana with E. S. and engaged in sexual intercourse with her.
After that encounter, E. S. surrendered to the authorities in Cleveland and was released to the custody of her grandfather. Lane continued to pursue E. S. while she was living with her grandfather, and he engaged in sexual intercourse with her on three occasions during this period.
Following an investigation, Lane was indicted for three counts of statutory rape and three counts of unlawful exercise of official power (all Class E felonies). He entered pleas of guilty to all counts and was sentenced to the Department of Correction for two years on each count with the statutory rape sentences running consecutively to the sentences for official misconduct, an effective sentence of four years. The trial court denied probation. The Court of Criminal Appeals affirmed the trial court's sentence.
II.
As stated, the trial court imposed consecutive sentencing pursuant to Tenn. Code Ann. § 40-35-115(b)(5) (sexual abuse of a minor). Lane first asserts that this was error because there were insufficient "aggravating circumstances" to warrant consecutive sentencing under this section. Specifically, he argues that (1) his status as an "official" should not be considered because it provided the basis for the official misconduct convictions; (2) the time span of the offenses was short; (3) the nature and scope of the sexual acts were "limited"; (4) there was no "residual physical damage" to E. S.; and (5) the "mental damage was minimal." See Tenn. Code Ann. § 40-35-115(b)(5).
Our review of whether sufficient aggravating circumstances ex
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